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Development of China's Legal System Will Strengthen Its Mediation Programs

By: Deborah Chow

“It is better to die of starvation than to become a thief; it is better to be vexed to death than to bring a lawsuit.”[1]

 

“It is better to keep a friend than to win a victory.”[2]

INTRODUCTION

For more than two thousand years China has used mediation as its primary form of dispute resolution.[3] Only recently has the practice and study of mediation become more popular in the United States.[4] China has long recognized the sociological and administrative advantages of mediation and has found it can resolve disputes in less time and for less money than litigation.[5] “The Chinese legal system has been one of the world’s most committed institutions in the use of mediation to resolve disputes and a leader in developing ways to maximize its benefits and effectiveness.”[6] For guidance in developing its own mediation system, America has looked to China, a nation that operates the largest and most extensive mediation program[7] in the world.[8]

Another reason China’s mediation program has attracted attention from abroad is due to its ever-growing international economic ties.[9] As international business between China and the United States has grown, so have the number of disputes between the parties involved in these transactions.[10] How China handles these disputes continues to draw the attention of its international business partners.[11]

Whereas the traditional American legal system lends strength and support to mediation through the extensive codification of rights and laws, China does not follow such a formal framework.[12] Instead, China prefers to settle disputes through informal mediation.[13] Even where cases are brought to court, Chinese judges often encourage, or in some cases require, mediation between the parties rather than adjudication.[14] Acting as mediators, these judges have been known to be biased, particularly against outsiders.[15] Without a neutral party, or a comprehensive legal code that is enforced, non-local and foreign outsiders are subject to the potential bias of the judicial mediator.[16] Even where the presiding judicial mediator is neutral or the mediation is conducted by an impartial third party, the absence of a coherent and accessible code system poses numerous potential problems as mediation is always conducted in the shadow of the law.

China’s mediation system would improve in overall fairness and effectiveness, if it developed a more just and predictable legal system. This system should be one in which its citizens and foreign businesses could confidently pursue enforcement of their rights under various Chinese laws, international norms, and international treaties. This paper will examine: (1) the roots of China’s mediation program, including discussions about the strong Confucian, Maoist, and legal influences; (2) China’s modern mediation systems; (3) weaknesses of the current mediation system; (4) the benefits for mediation through the development of China’s legal system; and (5) possible methods to aid the development of China’s judicial system.

 

I.                ROOTS OF CHINA’S MEDIATION PROGRAM

 

                  Examination of China’s legal system reveals that mediation is primarily based on a combination of cultural values and the historical evolution[17] of three socio-political factors: 1) Confucian philosophy, 2) Maoist principles, and 3) a loosely knit legal system.[18]

 

A.              Confucian Philosophy

The cultural roots of China’s mediation program are critical to understanding the wide-spread use and strong government support for this non-judicial system of dispute settlement.[19] China’s preference for extra-judicial mediation[20] is rooted in two ancient Confucian principles:[21] 1) li, the preservation of natural harmony, and 2) jang, compromise or yielding to settle disputes.[22]

These principles impose a moral duty upon citizens “to preserve harmony through one's behavior, guided by the rules of polite conduct”[23] and the “spirit of self-criticism.”[24] Unlike the United States and other western nations who tend to favor litigation as a means to protect rights and pursue justice,[25] Chinese culture does not consider compromise or humility in dispute resolution as undesirable or as a sign of weakness.[26] Rather, the Confucian culture prefers mutual compromise among conflicting parties to maintain natural harmony, li.[27] Citizens are encouraged to appeal to their families and communities because the Chinese culture believes that “each person’s identity is intimately and essentially defined by their many relationships within the intricate network of Chinese society.”[28] When conflicts arise, more than the immediate parties to the dispute are affected. Rather, disputes adversely affect the social harmony on multiple levels, from the parties to families, businesses, communities, and beyond.[29]

Chinese culture believes that litigation symbolizes a disruption in social harmony and runs contrary to the Confucian principle of li and jang.[30] The historical and cultural reason behind this view lies in the customary ethical rules of behavior which “[e]mphasized status and the necessity of maintaining group harmony… [C]onsequently, the Chinese regarded rights-based claims as disruptive violations of fundamental ethical rules.”[31] The Chinese culture goes so far as to characterize litigation as a "a public admission of some personal failing."[32] Hence, jang, compromise or yielding,[33] arose as the socially acceptable way to resolve disputes whereby one must "yield on some points in order to gain some advantage on others."[34] The principle of jang in dispute resolution is influenced by the virtue of “self-criticism” whereby an individual examines his own conduct and critically evaluates to what extent his behavior caused or contributed to the conflict at hand.[35] Identifying one’s own fault in a conflict is believed to help parties arrive at a more equitable resolution than litigation.[36] Through these means and philosophies, parties are encouraged to settle their disputes privately[37] and, only if necessary, to appeal to the family or community for aid in settlement.[38]

Despite the emphasis on the Confucian principles of li and jang, pressure from the West to create a “modern” legal system compelled China to establish a court system.[39] Due to a lack of commitment on behalf of the Communist Party, the judicial system did not develop to its greatest potential – one replete with formal codes and rules by which to administer justice and vindicate rights.[40] Instead, the Communist Party sought a flexible[41] system that was accessible to the people and believed that an overly formal judicial system was inconsistent and incompatible with communist ideals. As a result, resort to the Chinese courts proved to be an “inordinately expensive, time-consuming, and unpredictable” endeavor, which has been characterized as harsh as it is degrading.[42] Those who went to court often suffered humiliation at the hands of the magistrate’s staff who were their social inferiors, faced potential incarceration during trial, were denied professional advocates, and subjected to legally prescribed torture intended to illicit evidence.[43]

 

B.              Maoist Philosophy: Confucianism to Maoist Philosophy

With the inception of communism in the twentieth century, mediation continued to be the popular and accepted means of dispute resolution. The Communist Party recognized that the Confucian principles of social harmony and self-criticism mirrored and served communist ideals and goals:[44]

Mao’s fundamental concern with transforming the thought of individuals lies at the heart of strategies aimed at mobilizing the masses. In the Maoist view, political thought is incorrect unless it proceeds from and applies the correct thought. The thought and consciousness of individuals and their social classes must be changed by “resolving their contradictions” through the use of tools of struggle, especially “criticism and self-criticism…”[45]

 

The “Communist Party adopted mediation as a means to promote social harmony and control, conducting mediation with the assistance of ‘party cadres’ or People’s Mediation Committees.”[46]

In addition to the obvious benefits (avoiding cost, delay and undesirable dissonance), mediation by party members or organizations also served as a means of “educating the people and implementing party policy.”[47] “The idea of citizens correcting their own actions, albeit at the insistence of party cadres, through ‘persuasion and education’ led to the renewal of mediation in Chinese life.”[48] The Communist Party de-emphasized individual interests in favor of promoting social harmony and the common good on behalf of society as a unit.[49] Compromise, rather than victory over another, is seen as a stride towards greater unity. “In many respects, dispute resolution now bears the heavy imprint of communist ideology and perspectives.”[50]

The duet of communist ideology and mediation is accomplished through the structure of the mediation system. The role of Chinese mediators is to facilitate communication and problem solving between the parties.[51] To reach expedient and ideally harmonious resolutions, a mediator is adorned with power much like that of a trial judge – he may propose solutions, issue advisory opinions, and even decide questions of fact.[52] Mediators are also expected to exert political, economic, moral, and social pressures to compel parties to not only arrive at speedier resolutions, but also to agree to resolutions that comport with the Communist Party goals.[53] In light of mediators’ allegiance to the Communist Party and their great influence in the outcome of disputes, one cannot help but question the voluntariness and fairness of some of the mediation resolutions.

 

II. CHINA’S MEDIATION PROGRAMS

                  China’s mediation system is the most popular method for dispute resolution across a broad range of disputes,[54] both domestically and internationally.[55] Mediation is primarily used as a non-judicial dispute resolution method,[56] but it is also routinely implemented during arbitration and trial processes.[57]

A. Traditional Non-Judicial Mediation

                  Informal, non-judicial mediation has long been used in China as the preferred method of dispute resolution.[58] Mediation became codified in the 1954 Provisional General Rules for the Organization of People’s Mediation Committees.[59] Later, under the Organic Rules for People’s Mediation Committees promulgated in 1989,[60] each Urban Neighborhood or Village Resident Committee was entitled to establish People’s Mediation Committees[61] while larger workplaces such as government institutions, businesses, schools, and mines were permitted to create their own mediation committees.[62] These local committees consist of three to nine persons elected by the constituents within their jurisdiction.[63] The role of the committee members is to investigate the facts, weigh the facts to determine right from wrong, talk to the disputing parties, help the parties understand the facts, and attempt to have the parties reach an agreement.[64]

Though the Organic Rules for People’s Mediation Committees impose an obligation on the disputing parties to honor the mediation agreement, the agreement is not binding.[65] Either party can rescind the agreement or appeal to a local government agency or a people’s court.[66]

The manner in which mediation is structured reflects the interweaving of Chinese Communist ideology with the individual’s role in society.[67] Groups are organized by communities and workplaces because the Communist Party believes that morals, a focal point of the communist tradition, varies by geographic location and status.[68] Thus, national laws and codes are substituted by local mediation groups that conduct meetings regularly to discuss understandings of current events and political policy.[69] Should there be dissent within the mediation groups, group members are expected to apply social pressure to correct the mediator and realign the mediator’s understanding with that of the group through “criticism-education.”[70] Though mediation is conducted outside the purview of the courts and the groups are permitted to self-determine local norms and values, the results must ultimately comport with overarching national policies and rules.[71]

 

B. Mediation during Arbitration Proceedings

China has formally incorporated mediation into its arbitration proceedings.[72] Arbitral forums, both domestic and international, are required or permitted to mediate before commencing arbitration.[73] The 1983 Contract Arbitration Regulations required the parties to attempt to resolve their dispute through mediation.[74] Even where the dispute is arbitrated, China’s new Arbitration Law permits a tribunal to attempt mediation before deciding on an arbitral award.[75]

Notably, China has taken the lead in inventing new mediation methods such as “joint mediation” for use in international arbitration proceedings.[76] Under “joint mediation,” a Chinese party may apply to the China International Economic and Trade Arbitration Commission (“CIETAC”) in international arbitration proceedings.[77] Upon such application, the arbitrator appoints one or more mediators to mediate the case together.[78] Under the CIETAC agreement, international mediation efforts have been highly productive because mediators are selected from the parties’ own countries, thus fostering trust among disputants.[79] Unlike domestic mediation, international arbitration does not have the one-sided pressure of Communist policies.

 

C. Mediation During Litigation Proceedings

                  Mediation plays a role in litigation proceedings very similar to that of federal settlement conferences in the United States.[80] Upon filing with the court, Chinese judges conduct an in-court mediation hearing if the parties do not object and if the case so requires.[81] As in the American system, Chinese mediators are granted wide discretion as to how they conduct mediations.[82] Chinese mediators meet with both parties jointly and individually.[83] The judge-mediator may suggest settlement proposals that he believes to be fair, or he may offer an assessment of each party’s case to encourage parties to re-evaluate their positions, thereby facilitating settlement.[84] Unlike the American process, the judge-mediator may draw upon his own cultural and legal experience to evaluate the facts and propose legally binding settlement agreements.[85] Upon agreement by the parties, the court composes a mediation statement that legally binds the parties. [86] This likens the Chinese in-court mediation to an American settlement agreement rather than a voluntary mediation agreement.[87] If no mediation agreement is reached, the case goes immediately to trial.[88] Even where litigation is pursued, judges are permitted to make a final attempt to mediate the case prior to rendering the decision.[89] The use of mediation, even up to the moment a decision is rendered by the court, strongly evidences the deep roots of mediation and the values it engenders in Chinese culture.

 

D. Inadequate Judicial System

1. History – Structure of Current Government

Chinese history, even in the last century, has tread a tumultuous path which undoubtedly affected the development of its judicial system. In 1949, the Communists emerged victorious over the Nationalists[90] and, under the leadership of Mao Ze Dong, sought to establish a new legal system using the Union of Soviet Socialist Republics as its benchmark.[91] Sensitive to Western criticism that traditional Chinese law was backward, and that a “modern,” or Western, legal system would advance the development of Chinese society, the Communists moved quickly to establish a “modern” legal system based on codes and legislation.[92] Initially, the Communist Party recruited former nationalists[93] well versed in Western-style legal systems.[94] However, these former nationalists were quickly branded as politically unreliable and elitist.[95] They were replaced with “new cadres” selected not for their expertise with legal systems, but for their political allegiance to the Communist party and their commitment to the “masses approach.”[96]

The posting of “new cadres” who lacked expertise in western-style legal systems drastically affected the course of China’s legal development.[97] The “new cadres” believed that a legal system should not be overburdened with complex technicalities[98] that appear to riddle the Western systems. Rather, the Communist Party sought to create a system that would be easily understandable and accessible to the masses.[99] Initially holding dominant positions, the experts were able to effectuate progress.[100] However, the 1957 “anti-rightist movement[101] marked the beginning of a twenty-year period of political reform[102] where legal growth was thwarted by evolving national sentiments, thereby stagnating attempts to establish a formal legal system.[103] Even during the Great Leap Forward and the Cultural Revolution when China strived for great scientific and cultural advancements, legal study made only cautious progress.[104] This may be attributable to the growing prominence of the “mass line[105] approach to law and punishment[106] that runs counter to a systematic and structured legal system for which the Communist Party initially strived.[107] However, during the period of the “Gang of Four,” the legal system was thrown further back as violent and brutal techniques were employed “to purge positive law and those associated with it.” [108]

                 It was in the wake of the “Gang of Four” that China appeared to make efforts to develop a formal legal system. Referred to as the period of the “four modernizations,” China attempted ambitious strides in science, agriculture, industry, and national defense.[109] This included a reevaluation of its government system resulting in the promulgation of the 1978 Constitution which re-established the tripartite administration created by the Nationalist specialists prior to the anti-rightist movement.[110] Accompanying this restoration was a movement to bolster the legal system by supporting the re-emergence of lawyers, law schools, and legal publications.[111] Despite these efforts to revive past attempts at a Western legal system, the initiative was quite slow in effecting the development of the legal system.[112]

It was not until the 1990 Procedural Law of Administrative Litigation and the 1991 Civil Procedure Law that China took significant steps towards a more codified, and consequently more structured, legal system.[113] However, in light of these advances, mediation remains the premier dispute resolution technique, as evidenced by its codification in the 1954 Provisional General Rules for the Organization of People’s Mediation Committees.[114]

The 1989 Rules,[115] while placing mediation committees[116] under the jurisdiction of the Ministry of Justice and providing more structure for the committees, allowed greater independence from the central political party.[117] This legislation caused the modern mediation system to be more independent, professional, and efficient.[118] Despite the importance and many improvements of this legislation, there are still issues that must be addressed, such as mediator qualifications[119] and advisory powers, as well as the political, economic, social, and moral pressures they may apply on the parties.[120] In addition, the legislation does not further develop China’s legal system. Rather, the legislation supports mediation and its legislative and judicial diverting effects.[121] A wide spectrum of cases, including both civil and criminal, are diverted from the courts and funneled into mediation.[122] Though this appears to be administratively advantageous, it retards the development of judicial law[123] and implementation of existing laws.[124] Given that mediation is to be conducted in accordance with law,[125] where there is a lack of uniformity[126] and application,[127]mediation is resolved in accordance with local beliefs of fairness[128] and communist goals and policies.[129] China’s adoption of the Code of Civil Procedure in 1991, containing an entire section describing mediation’s proper use, reaffirmed its commitment to mediation.[130]

 

2. Courts.

Mediation owes much of its popularity due to its historically troubled and inaccessible court system.[131] Even today, litigants regard the Chinese legal system as arbitrary and unpredictable, thus inspiring little confidence in the process.[132] Distrust of the legal system is attributed to a multitude of factors including: corruption among judges, the lack of meaningful qualifications to become a judge, a judicial branch that operates under the stringent watch of the Communist Party, and the inaccessibility of published codes and case law.[133]

Perceived bias on the part of China’s judges, compounded by the lack of any education and training requirements, insufficiency of power to enforce judgments, and absence of a unified reporting system creates an unpredictable and worrisome schema for any potential litigant.[134] In addition to close National People’s Congress (NPC) oversight,[135] judges are required to attend party meetings to remain abreast of current party policy.[136] It is worthy to note that over ninety-percent of judges are party members.[137]

Selected by the government, “judges serve at the pleasure of the county, province, or city government that appointed them…”[138] Judges and other court personnel do not require any legal training. Only recently have judges been required to possess minimum educational requirements.[139] Despite government’s efforts to improve its judicial system by implementing minimum educational, training and testing requirements, the Communist Party continues to appoint judges based on political affiliations rather than on legal aptitude.[140] The result of this practice is a judicial system in which outcomes are determined not on existing laws or codes, but on the local or political affiliates’ interpretation of general party policies.[141] Judges have been known to bend procedural rules for friends and to accept bribes that affect the outcome.[142] Additionally, local protectionism bestows upon local residents distinct advantages when litigating or mediating against community or national “outsiders.”[143] “Political influences, the lack of educated judges who are able to find and apply law, widespread corruption and favoritism, and judgment enforcement issues combine to create a distrustful and unpredictable court system.”[144]

These weaknesses in the legal system trickle down to affect the mediation system because the mediation outcomes are supposed to conform with law. Where law is difficult to identify and implement by magistrates,[145] it must be assumed that mediators are in at least an equally disadvantageous situation. Even where mediation is court performed, the mediator-judge still has the problem of identifying law.[146] Another related problem with court-performed mediation is that the judge must also act as the mediator.[147] Because the judge plays the dual roles of an impartial trial judge and a mediator for settlement purposes, litigants will naturally censure their sharing of information[148] - an important component of a successful mediation.[149] Moreover, enforcement of judgments is often very difficult and complicated, leaving a successful litigant without the benefit of a practical remedy.[150]

Each level of government, whether county, city, or central, holds its own court and exerts considerable control over that court’s workload.[151] “It is the communist party, however, that exerts the greatest influence on the courts.”[152] To ensure that the courts abide by party policies, the Communist Party closely supervises the courts through its central legal committee and other legal committees established at various levels of government.[153] “The ‘supervisory’ role of the Communist party at times has included direct involvement with important judicial cases, although the stated policy of the Communist party is not to interfere with the daily functioning of the courts.”[154]

                  Clearly, development of the judiciary will not displace the use of mediation.[155] Rather, a stronger and more reliable legal system will bolster the reliability and predictability of mediation.[156] At this point, mediation is the people’s fall back from China’s inadequate legal system.[157] The Chinese court–performed model actively encourages, and in some cases forces, parties to mediate rather than have their rights adjudicated in court.[158] Even where the parties are permitted to take their case to court, there are still many concerns about the court’s neutrality.[159] The Chinese court does not operate as an independent branch of government as it does in the United States, instead the court is an inquisitional court where there are few lawyers and poorly trained judges.[160] In court-performed mediation, the judges act as mediators, thus bringing into the proceeding a local and party bias. Even where parties engage in informal mediation, the mediators are often party affiliated and impose communist party objectives into their, often forceful, settlement proposals.[161] The sheer vastness, local biases, and a poorly operated court system also add to the problem of lack of uniformity among the cities and provinces.[162]

 

III. Benefits to Mediation from the Development of China’s Legal System

 

Since mediation must be performed within the purview of the law, development of a more formalized legal system will improve Chinese mediation. Parties will have a better understanding of the rules and regulations that they must follow to preserve certain rights or privileges, and as a result, there may be less conflict and need for dispute resolution. Even where parties pursue mediation, the parties arrive at a more fair and expeditious settlement when they are aware of rights and rules. While China has made strides to establish a more codified judicial system,[163] it still must overcome several problems. First, China’s lack of uniformity in the application of these laws indicates problems in its drafting, inadequate enforcement, and wavering commitment by leaders to a law-based regime. Secondly, China’s expansive and disjointed legal system make it difficult for courts to identify and apply appropriate laws.

                  Legislature. The organization of China’s legislative and policy-making bodies is hindering the development of a coherent body of law. The executive branch of the central government consists of the State Council, which overseas over sixty departments, commissions, administrations, and offices.[164] Departments generate “departmental rules”, but the absence of procedure governing enactment of these rules permits an agency with exclusive jurisdiction over that subject matter to “issue or modify” these rules subject only to the approval of the State Council.[165] Though the various rule-making bodies are supervised by the State Council, absent is a shared vision towards the development of rules as well as their enforcement.[166] The result is a vast and disparate collection of laws lacking “sufficient unity to be regarded as a coherent body of law.”[167]

To compound this problem, Chinese legislative authority is becoming increasingly decentralized. While ultimate rule-making authority rests in the Central Government, in practice rule-making power is becoming increasingly concentrated in the hands of the administrative agencies and provincial governments.[168] While national departments and agencies enact legislation and rules superior to those of the provinces or local agencies, the decrees are broad and ultimately left in the hands of the local administrators to interpret and apply.[169] Hence, the legislative power of the central government is undermined as “Central directives and exhortations are typically ‘ignored or superficially followed,’ deviations from central state policies is encouraged….”[170]

Contributing to the state of legislative disorder is China’s “flexible” approach to legislative drafting. This approach reflects China’s long-favored preference for equitable resolution as opposed to adjudication of rights and uniformity of law.[171] Chinese legislation resembles governmental policies and objectives rather than an outline of actual rules or rights. Chinese legislation is intentionally drafted in broad sweeping language,[172] often referring to general principles and granting broad discretion to administrators in order to create flexible application of laws depending upon the circumstances of the case.[173] Vague drafting combined with the absence of any centralized system for tracking and reporting legislation, rules and policies decreed by national and local administrators make it impossible to expect uniform interpretation and enforcement by courts or extra-judicial mediation.[174]

 

Courts. In such an expansive and disjointed legal system, courts face difficulty in defining and enforcing rules and rights.[175] Since 1978, China has made great efforts to enact substantive law and procedural rules to provide consistency and regularity, however, many of these rules merely codify fact-based and ideological discretionary application of the law.[176] However, this result is intended as judicial administrators are expected to resolve conflict more in the spirit of equity than in the adjudication of rights.[177] The laws merely codify informality, thereby blurring the lines of adjudication in the courts and mediation.[178]

Despite the increasing use of courts,[179] litigation is not the socially preferred method of dispute resolution.[180] Mediation is still preferred, particularly where the maintenance of the relationship is important or where there is a lack of judicial sophistication in the subject matter.[181] Development of the Chinese bar and legal education has lagged behind the development of its legal system.[182] The number of attorneys in China is small and the professional standards remain low.[183] Furthermore, despite vast amounts of legislation generated, locating applicable law can be nearly impossible due to the lack of a current and comprehensive database or laws and regulations enacted by the many governmental bodies.[184]

Even when cases are brought to the courts, a good outcome is one that is not only consistent with the law as defined by the administrator, but one that also maintains social harmony through the dispensing of individualized justice.[185] Hence, courts’ contributions to the enforcement or development of law are limited. Since decisions are based more on specific facts than the letter of the law, decisions do not set legal precedence nor do they clarify individual rights.

This impacts both court administered and extra-judicial mediation as Chinese procedural codes require that mediation comport with the law. However, vague law and the absence of procedural guidelines for mediation permit mediation to be conducted according to the terms and moral beliefs of the judge or mediator.[186] Such power and discretion contributes to the resurgence of corruption among lawyers, judges, and officials.[187]

CONCLUSION

“One of the hallmarks of mediation and one of the primary reasons for (mediation’s) relative popularity is its ‘capacity to expand traditional settlement discussion and broaden resolution options, often by going beyond the legal issues in controversy.’”[188] “Legal reformers recognize the need for greater confidence in the Chinese judiciary through better training of judges, codification of laws, and systematic application of those laws, especially in light of its relatively recent economic growth and interaction with the world economic community.”[189] Despite China’s initiative to establish a more modern legal system that is committed to codes and legislation to engender confidence in its legal system as well as to compete in the international economic market, it is still deeply committed to the concept of institutionalized mediation.[190] However, China need not displace its long favored use of mediation. Instead a system in which rights are more certain and outcomes predictable lends greater credibility and efficiency to mediation rather than mediation being the less attractive alternative in dispute resolution.



* 2002 J.D. candidate, Benjamin N. Cardozo Law School, New York, New York.

[1] Justice Robert F. Utter, Tribute: Dispute Resolution in China, 62 Wash L. Rev. 383, 396 n. 2 (1987), citing Cohen, Chinese Mediation on the Eve of Modernization, 54 Calif. L. Rev. 1201, 1201 (1966).

[2] Id. at 384.

[4] See Jeannie Costello & Christine Lepera, Alternative Dispute Resolution: What the Business Lawyer Needs to Know, Practicing Law Institute (1999) (stating that statistics indicate that ADR techniques are now being used with more frequency and with greater statistical success in the resolution of intellectual property disputes, entertainment industry disputes, and employment disputes. ADR is an effective form of dispute resolution where the preservation of relationships is important.).

[5] See Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes, 5 Harv. Negotiation L. Rev. 113 (2000) (analyzing the emotional consequences of different ADR methods (negotiation, mediation, and arbitration) through the theories of “therapeutic justice” and “preventative law.” Therapeutic justice is an interdisciplinary perspective originally developed in the field of mental health law where the legal procedures of civil commitment and treatment made excellent case studies for the psychological impact of the law on patients. Preventative law is a perspective on the law practice that seeks to minimize and avoid legal disputes as well as to increase life opportunities through legal planning. Both theories are characteristic of the various ADR methods and differ from the traditional adversarial system in that ADR seeks a mutually satisfactory process by which to resolve disputes.).

[7] See Ge, supra note 3, at 124 (“China’s mediation system became the largest dispute resolution program in the world.”).

[8] See id. at 128 (“China has been at the forefront of developing precedents of mediation as well as maximizing the benefits from it.… China’s experience is noteworthy for those countries in the world seeking optimization of dispute resolution alternatives.”).

[9] See id. at 122.

[10] See id.

[11] See id.

[12] See Utter, supra note 1, at 387 (“By handling a broad range of disputes, these extra-judicial groups spared the government the necessity of drafting a comprehensive body of legislation.”).

[13] See id. at 383-84 (“The traditional preference for dispute resolution outside a legal court structure continues in modern China.”). See also Colatrella, supra note 6, at 405 (stating that even where parties bring their issues to court, the parties are expected to participate in mediation to resolve the dispute and promote social stability).

[14] See Colatrella, supra note 6, at 404-05 (noting that occasionally judges employ more forceful pressures to encourage parties to mediate disputes).

[15] See id. at 400 (“Litigants regard litigation in China as often arbitrary and unpredictable inspiring little confidence in the results obtained there.… The perceived lack of impartiality among China’s judges, coupled with their poor education and training, creates a rather unreliable environment for litigants seeking to protect or vindicate their rights.” Additionally, China’s protectionist culture places community outsiders and foreign parties at a great disadvantage.).

[16] See id.

[17] See id. at 394-95.

[18] See id. at 396.

[19] See Robert Perkovich, A Comparative Analysis of Community Mediation in the United States and the People’s Republic of China, 10 Temp. Int’l & Comp. L.J. 313 (1996) (“The use of mediation in The People’s Republic of China to resolve disputes has a long history that can be traced to Confucian roots.”).

[20] See Ge, supra note 3, at 123.

[21] See Colatrella, supra note 6, at 396 (“Confucian philosophy. . . dominated Chinese culture for more than two thousand years and is still a significant force in modern Chinese society . . .”).

[22] See id. at 396-97.

[23] Id. at 396.

[24] See id. at 396-97 (“Another Confucian principle which influences conflict resolution is the spirit of self-criticism.").

[25] See id. at 414 (“It is equally understandable why, in the United States, with the widely shared belief in and adherence to the rule of law and the availability of a relatively predictable and respected court system to enforce it, Americans have come to value and rely on traditional litigation over all other forms of dispute resolution.”).

[26] See id. at 396-97 (“One who assumes a spirit of self-criticism examines his conduct to determine whether it is the cause of the conflict. This humbling act, in turn, invokes a positive response from the other party and hopefully leads to harmony. Thus, mediation always has been consistent with Confucian values.”).

[27] See Utter, supra note 1, at 384 (arguing that Chinese jurisprudence places greater value on compromise than its western counterparts).

[28] See id. at 394 (“Disputes never affect only the primary parties – that which touches one person must inevitably reverberate through the lives of a host of others.”).

[29] See id.

[30] See Colatrella, supra note 6, at 396-97.

[31] Utter, supra note 1, at 385.

[32] Colatrella, supra note 6, at 396-97.

[33] See Utter supra note 1, at 385 (defining Jang as the Confucian principle of yielding, or giving way, on certain points in order to garner the advantage on others, thereby fostering a compromise between the parties).

[34] See Perkovich supra note19, at 315.

[35] See Colatrella, supra note 6, at 397.

[36] Margaret Y. K. Woo, Law and Discretion in the Contemporary Chinese Courts, 8 Pac. Rim. L. & Pol’y 581, 584-5 (1999). (arguing that in every judicial system, there exists the dual goals and tensions between legal certainty, characterized by codes and rules, and equity, achieved through fact-based discretion in individual cases. The Chinese legal system places greater emphasis on discretionary decision-making based on individual circumstances.).

[37] See Utter, supra note 1, at 385 (asserting that litigation constitutes a public admission of some personal failing and requires the revelation of private problems to unknown third parties).

[38] See Colatrella, supra note 6, at 396 (stating that Confucian philosophy “traditionally encouraged individuals to settle their disputes privately and, if necessary, involve the community, extended family, clans, and guilds for dispute resolution assistance.”).

[39] See Utter, supra note 1, at 388.

[40] In addition to China’s own interest in creating a new government system, China felt pressure to establish a legal system like the western countries consisting of codes and court systems. See Utter, supra note 1, at 388 (stating that sensitivity to the western charges that traditional Chinese law was backward, coupled with the view that a “modern”, or western, legal system would somehow promote the development of Chinese society, China established a legal system modeled after that of the former USSR).

[41] Stanley Lubman, Bird in a Cage: Chinese Reform After Twenty Years, 20 J. Intl. L. Bus. 383 (2000) (“The language and phrasing of Chinese legislation and rules create wide scope for administrative discretion in interpretation because a major goal of Chinese legislative drafting is “flexibility.”). See Woo, supra note 36, at 586-7 (In the resolution of disputes, Chinese judicial policy places greater emphasis on individual circumstances rather than rigidly enforced laws for more “correct” outcomes. “In the interviews, economic and civil law judges expressed hesitation in making rigid zero-sum determinations for or against a party, for such determinations tend to be more disruptive and less harmonious.”).

[42] See Utter, supra note 1, at 385.

[43] See id. at 386.

[44] See Perkovich, supra note 19, at 324-25.

[45] Utter, supra note 1, at 387-88.

[46] Colatrella, supra note 6, at 399.

[47] Id.

[48] Perkovich, supra note 19, at 318

[49] See Colatrella, supra note 6, at 398.

[50] Utter, supra note 1, at 387.

[51] See Perkovich, supra note 19, at 324-25.

[52] See id. at 324.

[53] See id.

[54] See Ge, supra note 3, at 124-25 (“According to Ren Jianxin, the Chief Justice of the Chinese Supreme Court, the mediation committees have settled cases covering a wide array of topics such as divorce, inheritance, parental and child support, alimony, debts, real property, production, and torts, as well as other civil and economic disputes and criminal misdemeanor cases.”).

[55] See id.

[56] See id. at 123.

[57] See id. at 125 (“. . . China has extended the application of mediation to its arbitration and litigation proceedings.”). See also Utter, supra note 1, at 383, (“Despite cultural, political, and historical differences, Chinese methods and philosophies of alternate dispute resolution have lessons for those seeking improvement in our traditional western adjudicative model.”). See also Colatrella, supra note 6, at 395 (China’s court-implemented mediation program resembles a settlement conference in the United States federal courts. However, in its analysis of the Chinese model, Federal Courts propose that rather than having the judge act as the mediator, it is better to keep the Judge unbiased and to bring in a third party neutral).

[58] See Ge, supra note 3, at 123. See also Colatrella, supra note 6, at 404 (China adopted in 1991 the present Code of Civil Procedure which dedicated an entire section “describing mediation’s proper use, evidencing its prominence in China’s ordinary civil procedure.”).

[59] See Ge, supra note 3, at 124 (stating the description of community mediation).

[60] See id. at 124 (citing Organic Rules for People’s Mediation Committees (June 17, 1989 (P.R.C.))).

[61] See id. (citing Organic Rules for People’s Mediation Committees (June 17, 1989 (P.R.C.), art. 2) and, The Organic Law in Urban Committees in China, art. 13).

[62] See id. (citing Organic Rules for People’s Mediation Committees (June 17, 1989 (P.R.C.), art. 15)).

[63] See id. at art. 3.

[64] See id. at art. 8.

[65] See id. at art. 8.

[66] See id. at art. 9.

[67] See Utter, supra note 1, at 392.

[68] See id.

[69] See id.

[70] See id.

[71] See id. at 393. (Mediation “serves to articulate and apply the ideological principles, values, and programs of the Chinese Communist Party and helps to mobilize China’s people to increase their commitment to party policies and goals.”). Contra, Woo, supra note 36, at 597 (“While the procedural codes also requires that the contents of a mediates agreement not violate the law, the process of mediation has no formalities and is to be conducted according to the judge’s innate sense of right and wrong.”).

[72] See Ge, supra note 3, at 125-6.

[73] See id.

[74] See id. (“Arbitral organs … are required or permitted by their respective rules and regulations to attempt mediation before proceeding to arbitrate.”).

[75] See id. at 126 (citing the Arbitration Law of China, adopted at the 9th Session of the Standing Committee of the Eighth National People’s Congress on August 31, 1994, reprinted in China Economic News, (no. 39) Oct. 10, 1994 at 6.).

[76] See id. at 126-27 (Each party may appoint one or more mediators on an equal basis to jointly mediate the case. Because parties may select mediators from their own countries, there is greater trust between the mediators and disputants, thus efforts made during international arbitration proceedings have been highly successful.).

[77] See id.

[78] See id. at 126.

[79] See id. at 127. (“Currently about 30% of the international arbitration cases accepted by CIETA were solved by mediation.”).

[80] See Colatrella, supra note 6, at 391 (While there is no parallel provision in the United States Federal Rules of Civil Procedure requiring a judge to apply a particular set of values or even the law to facilitate a settlement, in practice a Chinese mediation proceeds very much like a settlement conference in America).

[81] See Ge, supra note 3, at 127. See also Colatrella, supra note 6, at 404-05 (“Participation in mediation is voluntary, but judges occasionally employ subtle, and sometimes more forceful, pressures to encourage parties to mediate disputes. Participation in mediation is commonly expected of and . . . an efficient way to resolve disputes and promote social stability.”).

[82] See Colatrella, supra note 6, at 405-06 (“In both systems, it is left to the judger’s discretion as to when, how long, and in what manner to conduct mediation or a settlement conference. This obviously leads, in both systems, to great disparity in how each process is conducted even within each system. Nevertheless, the Chinese judge uses many settlement techniques that would be very familiar to his American counterpart.”).

[83] See id. at 406 (noting that Chinese judges often will “caucus” with parties, meeting with them separately).

[84] See id. (“The judge sometimes will suggest a settlement proposal he or she believes would be fair or point out to the parties the particular weakness of their claim or defense, giving them cause to re-evaluate the strength of their position.”).

[85] See id.

[86] See Ge, supra note 3, at 127.

[87] See Colatrella, supra note 6, at 411-12.

[88] See id. (citing Code of Civil Procedure of China, [Bus. Reg. 1] China Laws for Foreign Bus. (CCH) 9, 19-201 (1991)).

[89] See id. (citing Code of Civil Procedure of China, art. 128 (1991)).

[90] See Utter, supra note 1, at 388.

[91] See Colatrella, supra note 6, at 398. See also Utter, supra note 1, at 388.

[92] See Utter, supra note 1, at 388.

[93] See id. at 388.

[94] See id. at 388-89 (“To staff the new legal system, the Communists retained a number of legal specialists who had worked for the Nationalists, primarily because the Communists did not have within their own ranks people with skills and knowledge to run a complex legal system” replete with codes.).

[95] See id. at 389.

[96] See id.

[97] See id. (stating that “[t]he ‘new cadres’ lacked legal skills and knowledge”).

[98] See id. (explaining that in addition to these broad-based beliefs, it has been contended that simplicity was stressed also because of the “new cadres” own lack of legal expertise).

[99] See id.

[100] See id. (stating that during the first few years of the communist party, the specialists helped establish law codification commissions, judicial and police structures, and rules of operation. Law schools opened and some legal periodicals and books were published. In 1954, the specialists introduced the first Chinese constitution which established a tripartite governmental design consisting of the supreme people’s court, the supreme people’s procuracy, and the state council, all responsible to the standing committee of the national people’s congress.).

[101] See id. (stating that during the anti-rightist movement, the communist party’s sentiment towards the need for a “modern” legal system changed dramatically. Many specialists were removed from their posts and then attacked and denounced for the very policies they were initially retained to develop. Law schools were closed and plans for further codification were terminated. The communist party went as far as to undo and supplant existing laws as well as to replace the role of the courts and procuracy with public security bureaus.).

[102] See id.

[103] See id. at 390-91 (explaining that during this period, China endured many violent and tumultuous revolutions such as the anti-rightist movement, great leap forward, cultural revolution).

[104] See id. at 390.

[105] See id. (stating the definition of “mass line” technique: administration of justice by “the people”, rather than by those specially-trained for such work. In more typical criminal cases, if “the people” felt that the punishment was insufficient, they would implement “Criticism education” used to help “reform” the wrong-doer.).

[106] See id. at 389-90 (explaining that during the cultural revolution and the great leap forward the legal system, more specifically, the criminal legal system, did make some progress. However, during this period, the “mass line” approach to punishment rose to great popularity. This mass line approach flies in the face of a structured and predictable legal system.).

[107] See id. at 390 (explaining that the “mass line” included administration of justice by the “people”, rather than by those specially-trained for such work).

[108] See id. (stating that during the period of the “gang of four” (1966-76), the government sought to overthrow all semblances of positive law as well as individuals associated with it such as lawyers, policemen, procurators, and judges).

[109] See id.

[110] See id.

[111] See id. at 390-91.

[112] Although there is a tripartite governmental system, the branches are not independent; rather, each is controlled by the Communist Party. Id. Despite increases in the number of cases brought to court, the formal legal system handles but a fraction of the total cases. Id. Even when cases are brought to court, judges usually first conduct mediation to avoid legal adjudication. Id. at 391. See Utter, supra note 37, at 387-391. (Amidst intense and violent revolutions, China attempted to establish and then erase and then re-establish a judicial system and legislation. However, China’s tumultuous history has had devastating effects on developing a systematic and structured legal system as well as creating any incentive for individuals to study or associate themselves with such a system for fear of party denouncement. As a result, China lacked legal experts and scholars to help create and custom tailor a legal system both culturally and politically consistent with its needs).

[113] See Ge, supra note 3, at 133-34.

[114] See id. at 123 (explaining that in the establishment of the People’s Republic of China in 1949, China replaced the old legal system with an informal, albeit codified, mediation system in the 1954 Provisional General Rules for the Organization of People’s Mediation Committees).

[115] See id. at 124.

[116] See Perkovich, supra note 19, at 324 (explaining that mediation committees are organized within each neighborhood, village, and/or workplace. There is no formal training required, and mediators are selected by community members. In most instances respected elders, believed to be the most fair, are selected to serve the community). See also Ge, supra note 3, at 124 (“Also, mediation committees are allowed to be established in larger workplaces such as government institutions, businesses, schools, and mines. Each mediation committee shall be comprised of three to nine members who are elected by the constituents from the committee’s jurisdiction. An adult citizen who is ‘impartial to people, has a close connection to the masses and possesses basic knowledge of law and policies’ can be eligible for the candidacy of a mediator. While mediating, committee members must investigate facts, distinguish right from wrong, talk to the disputing parties patiently, bring them around, and finally try to reach an agreement. Though the 1989 Rules impose a general obligation on the disputing parties to honor the dispute resolution agreement reached in mediation, enforcement of the agreement is not mandatory. A party may rescind the agreement at will and take the case to the relevant local government agency or a people’s court.”).

[117] See Ge, supra note 3, at 124.

[118] See id.

[119] See Perkovich, supra note 19, at 324 (stating that there is no formal training required to be a mediator. In most instances mediators selected by the communities are respected elders, who are believed to be the most fair).

[120] See id. at 324-25.

[121] See Utter, supra note 1, at 387 (“Extra-judicial mediation also eased the government’s work burden and helped avoid friction between magistrates and the people in their jurisdictions. By handling a broad range of disputes, these extra-judicial groups spared the government the necessity of drafting a comprehensive body of legislation.”). See also Ge, supra note 3, at 125. (“Over seven million disputes are satisfactorily resolved through the use of mediation each year in China, far surpassing the number of cases brought to Chinese courts.”).

[122] See Ge, supra note 3, at 125 (“[T]he mediation committees have settled cases covering a wide variety of topics such as divorce, inheritance, parental and child support, alimony, debts, real property, production, and torts, as well as other civil and economic disputes and criminal misdemeanor cases. They have also played an important role in preventing crime, reducing litigation in the courts, enhancing the people’s unity, and promoting social stability. Over seven million disputes are satisfactorily resolved through the use of mediation each year in China, far surpassing the number of cases brought to Chinese courts.”).

[123] See Utter, supra note 1, at 387 (“Extrajudicial mediation also eased the government’s work burden and helped avoid friction between magistrates and the people in their jurisdictions. By handling a broad range of disputes, these extrajudicial groups spared the government the necessity of drafting a comprehensive body of legislation.”).

[124] See Seidman, Ann & Robert, Drafting Legislation for Development: Lessons from a Chinese Project, 44 Am. J. Comp. L. 9, 9-10. (“In 1989, when China first incorporated priority laws in its current Five Year Plan, three serious deficiencies still characterized the drafting system. First, the drafting process seemed intolerably slow…. Second, the drafting system often produced unimplementable laws…. Third, the system sometimes produced laws that had perverse consequences.”).

[125] See Perkovich, supra note 19, at 324.

[126] Even in the US, there is concern about uniformity and regulation of arbitration and other ADR methods. However, we have attempted to resolve this by involving industry experts in addition to those who simply have relevant knowledge to the case. In America, there is usually legal recourse for mediation or arbitration proceedings. Though concern about uniformity of the American ADR process has been raised, this concern is really most pertinent in issues of first impression cases (such as issues in intellectual property). Symposium, Using Alternative Dispute Resolution in Intellectual Property Cases, 2 Cardozo Online J. of Confl. Res. (2001). When parties reach the stage where they may effectively use an ADR process, they are usually also prepared to go to court. Thus, ADR, mediation specifically, becomes something of a “last-chance” settlement conference where both parties are fully familiar with the facts of the case, witnesses, and the relevant laws that would be raised at trial. In China, there is no such legislative or case law back-bone to encourage fair settlement where rights of parties may be upheld rather than compromised. Id.

[127] See Colatrella, supra note 6, at 403 (“Even when a judge has appropriate legal education and training, finding applicable law to support one’s claim is often a daunting, if not impossible, task. . . There are frequently no statutes relevant to the disputed issue and the laws that are in place are sometimes contradictory. To further complicate the judge’s task, there is no systematic and reliable method of case reporting.”).

[128] See Utter, supra note 1, at 392 (“The conception of rights and liabilities in the People’s Republic differs radically from that held in the west. Chinese jurists criticize the capitalist legal system as one that has trivialized and commercialized matters such as human dignity, conscience, reputation, pain and morality into items of merchandise that have a price and can be exchanged.” Even redress for injury to personal rights are channeled into mediation proceedings.).

[129] See id. at 393 (Mediation “serves to articulate and apply the ideological principles, values, and programs of the Chinese Communist Party and helps to mobilize China’s people to increase their commitment to party policies and goals. Rather than settling disputes between individuals, mediation also serves to suppress such disputes, which are regarded as harmful social conflict that interferes with the construction of a strong socialist China.”).

[130] See Colatrella, supra note 6, at 404.

[131] See id. at 397.

[132] See id. at 400.

[133] See id.

[134] See id. at 400-3.

[135] See id. at 400-01 (proposing that despite the tri-part government body, the policy, functioning and, not infrequently, the decisions of the court are influenced by other branches of the government or the Communist party thus undermining its power and independence. Courts in practice must answer to other government branches, and most prominently to the National People’s Congress (NPC), the supreme legislature of China, the local government and the Communist party. Whether the NPC may inquire into the merits of ongoing litigation, the NPC, which is constitutionally empowered to “supervise” the court, does so regularly into controversial and important case. In such cases, the NPC representative of the district where the case is being heard will write the court a proposal as to how the matter might be resolved, to which the court must reply within three months.).

[136] See id. at 402.

[137] See id.

[138] See id.

[139] See id. at 402-03.

[140] See id. at 403.

[141] See id. at 402-03.

[142] See id. at 404.

[143] See id. at 402.

[144] See id. at 404.

[145] See id. at 403 (“Even when a judge has the appropriate legal education and training, finding applicable law to support one’s claim is often a daunting, if not impossible, task. Updated indexes are often not available to facilitate locating applicable law. There are frequently no statutes relevant to the disputed issue and the laws that are in place are sometimes contradictory. To further complicate the judge’s task, there is sometimes no systematic and reliable method of case reporting.”).

[146] See id.

[147] See id. at 415.

[148] See id. at 415-16.

[149] See Perkovich, supra note 19, at 323.

[150] See id. at 403 (explaining that obtaining a judgment in court does not end the legal process. Enforcement of judgment is often difficult for there are few penalties for failing to comply, it is difficult for courts to enforce judgments against administrative agencies because the courts are their “arms,” and local authorities are reluctant to coerce payment – particularly in light of protectionist policies.).

[151]See id. at 401 (stating that local governments exert a considerable amount of control over local courts as they provide the court facilities, personnel, and finances).

[152] See id.

[153] See id.

[154] See id.

[155] See id. (arguing that China is improving its legal system, but it holds fast to mediation).

[156] See id. at 395 (stating that in the United States, the Federal District Courts have been examining the Chinese Court-performed mediation and has modeled it’s court-annexed mediation program after it. “By adopting a more court-performed mediation model like that of China’s, the federal court will enhance the credibility of mediation, thus inspiring greater use and participation in it and thereby help to transform the way our society resolves disputes.”).

[157] Though China’s preference for mediation is attributable to the Confucian roots and communist ideology, its continued popularity is also attributed to an underdeveloped legal system. See Perkovich, supra note 19, at 321 (“This preference for informal, communal and non-governmental forms of dispute resolution, which stress the preservation of social harmony, have endured intermittently from the time of Confucius to the present day. This preference may be said to derive from three sources. First, there is a tradition that human or positive law is imperfect when compared to heavenly reasons and human feelings. Second, there is a preference of the Chinese Communist Party for central planning over contractual relationships enforceable by law. Third, the Chinese Legal System is ineffective and underdeveloped.”).

[158] See Utter, supra note 1, at 391 (stating that despite increases in the number of cases brought to court, the formal legal system handles but a fraction of the total cases and that even where cases are brought to court, judges usually first conduct mediation to avoid legal adjudication).

[159] See Perkovich, supra note 19, at 324-25 (explaining that because mediators may advise and recommend possible solutions, Chinese mediators have the potential to assert strong political, economic, social and moral pressure upon the parties, thereby calling into question the voluntary nature of the mediation).

[160] See Seidman, supra note 125, at 27-28.

[161] Colatrella, supra note 6, at 405.

[162] See id. at 399-404.

[163] See Utter, supra note 1, at 388 (stating that sensitivity to the western charges that traditional Chinese law was backward, coupled with the view that a “modern”, or western, legal system would somehow promote the development of Chinese society, caused China to establish a legal system modeled after the former USSR).

[164] See Lubman, supra note 41, at 389.

[165] Id. at 390.

[166] Id. “The distribution of legislative power in China suggests that China suffers from ‘legal fragmentation’ and supports the conclusion that no legal institution in China has ‘either the statutory or desire to impose order on the legal system.’”

[167] See id. at 391.

[168] See id. at 389. (“The reform era has seen the expansion of the legislative power of provincial governments and more than twenty functional bureaucracies of the central government.”).

[169] Although China has generated much legislation, the role of legislation is problematic. The legislation is “tentative and that implementation be adjusted to reflect specific local conditions; its imprint on legislative drafting remains strong.” See id. at 384-5.

[170] See id. at 402.

[171] See Woo, supra note 36, at 582. (“Thus, although there are signs of change, courts have been more concerned with substantive justice than with ensuring uniformity of results or with developing general rules of application with each adjudication.”).

[172] See Lubman, supra note 41, at 391. (“Standard drafting techniques include the use of general principles, undefined terms, broadly worded discretion, omissions, and general catch-all phrases.”).

[173] Seeid. (“[A]t all levels Chinese legislation is intentionally drafted in ‘broad, indeterminate language,’ which allow administrators to vary the specific meaning of legislative language with circumstances.”).

[174] Fu Hualing, Understanding People’s Mediation in Post-Mao China, 6 J. Chinese L. 211, 229 (1992). (“Although mediators can cite the law and apply it to various situations, they have no substantive authority to enforce it.”).

[175] See Lubman, supra note 41, at 390 (noting that courts cannot locate a point of legal reference).

[176] See Woo, supra note 36, at 594.

[177] See id. at 585. While every legal system must arrive at a balance between the dual goals of (1) formal rules and uniformity and (2) individualized justice and equity, “…it is clear that discretion is an integral part of [the Chinese legal system].”  

[178] See id. at 594. “In sum, the procedural laws systematically favor alternative dispute resolution over adjudication, informal process over formal process, individualized justice over strict application of law, and open-endedness and reconsideration over finality and closure.”

[179] See Lubman, supra note 41, at 387.

[180] See Woo, supra note 36, at 588.

[181] See Lubman, supra note 41, at 388.

[182] Donald Clarke, Dispute Resolution in China, 5 J. Chinese L. 245, 281 (1991). “Other problems include the generally low level of legal training among judicial assistants and their paucity in number.” See also Lubman, supra note 41, at 389.

[183] See Lubman, supra note 41, at 389.

[184] Id.

[185] See Woo, supra note 36, at 588.

[186] See id. at 597-8.

[187] See Lubman, supra note 41, at 389 (discussing the effect of the emergence of law and materialism).

[188] See Colatrella, supra note 6, at 412 (stating that while it is true that mediation is more flexible, there appears to be a tradeoff between flexibility and outcome predictability).

[189] See id. at 414-15.

[190] See id. at 399-400. See also Ge, supra note 3, at 137 (“Although Chinese people will still emphasize settling disputes through mediation or arbitration, they seem increasingly inclined to litigate.”).